Case Summary for April 3, 2013

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Case Summary for April 3, 2013

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, April 3, 2013

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SC92984
Phillip H. March v. Midwest St. Louis, L.L.C.
St. Louis city
Motion for new trial

Listen to the oral argument:

Midwest St. Louis was represented during arguments by Patrick A. Bousquet of Brown & James PC in St. Louis, and March was represented by Jonathan Sternberg, a solo practitioner, in Kansas City.

Phillip March was stabbed April 24, 2007 outside a gas station owned by Midwest St. Louis LLC, in St. Louis city. March sued Midwest for negligence claiming the stabbing occurred on Midwest’s property and it had failed to keep its premises safe. At trial, an expert witness who works as a crime scene reconstructionist testified that based on the blood spatter, he believed the location of the stabbing was in the alley behind the gas station, which is not Midwest’s property. When asked if he had ever been retained by the United States government for an investigation, the witness testified he had worked on crime scene reconstruction at the Fort Hood shooting in Texas. The trial court found Midwest was not negligent. Following trial, March discovered an article written by the expert witness, which March claims reflects on the witness’ character because it states the witness was retained by defense counsel to investigate the Fort Hood shooting. March filed a motion for new trial, claiming the expert witness committed perjury and a different verdict would have resulted in light of the new evidence. The trial court granted the motion. Midwest appeals.

Midwest argues the trial court erred in granting March’s motion for a new trial. It contends its expert witness did not commit perjury, because he did not willfully or deliberately give false testimony regarding his involvement in the investigation of the Fort Hood shooting. Midwest asserts that if the testimony gave a false impression regarding the witness’ role, it was not a material issue. It argues the article March submitted as newly discovered evidence does not meet the requirements of newly discovered evidence. Midwest contends the evidence did not come to light after the trial nor was there a lack of due diligence that caused the delay in discovering the evidence. It asserts the evidence is not so material that it would produce a different result at a new trial. Midwest also argues the evidence is merely cumulative, the affidavit of the witness himself should be provided or the absence accounted for and the evidence merely impeaches the character of a witness.

March responds the trial court correctly granted his motion for a new trial. He argues the expert witness testified falsely at trial and that an improper verdict may have resulted from the testimony. March contends the witness testified that he was hired by the United States government to conduct crime scene investigation of the shooting at Fort Hood. He asserts it was later revealed that it was actually the defense counsel who hired the witness to conduct the investigation of the shooting. March argues the trial court could and did believe this resulted in an improper verdict at trial. He contends the witness posted an article on his website, which his counsel did not learn about until after the trial. March asserts the article is newly discovered evidence and it was not from a lack of due diligence that his counsel did not learn about it until after the trial. He argues he obtained an affidavit from the witness regarding the article, and the evidence in the article reflected the witness’ qualifications. March contends it was not cumulative evidence and would produce a different result at a new trial.

SC92904
Shannon L. Bair v. William M. Faust
Jackson County
Motion for new trial
Listen to the oral argument:

Bair was represented during arguments by Brett T. Burmeister of Burmeister Gilmore LLP in Independence, and Faust was represented by Paul S. Penticuff of Baker Sterchi Cowden & Rice LLC in Kansas City.

Shannon Bair was injured June 5, 2009, when her car flipped and rolled off highway 50 in Lee’s Summit. She sued William Faust, alleging he pulled in front of her nearly causing a collision and then intentionally swerved into her lane causing her to lose control. At trial, Bair’s counsel announced she would not be present and the jury voiced their concern and intent to hold that against Bair. Faust moved to have Bair excluded from trial, which the trial court granted. The trial court informed Faust it would allow him to argue an adverse inference that Bair’s absence could be taken as an inference that her testimony would have been unfavorable to her case. Bair’s counsel objected and attempted to have Bair appear; however, the trial court upheld the exclusion. The trial court found Bair 85 percent at fault for the accident and awarded her $9,000. Bair filed a motion for a new trial, which the trial court overruled. Bair appeals.

Bair argues the trial court erred in allowing Faust to argue an adverse inference to the jury. She contends precedent prevents a party from arguing an adverse inference based on a witness’ absence when the trial court barred the witness from testifying. Bair asserts the trial court excluded the witness from appearing at trial, but permitted Faust to argue the adverse inference based on her absence. She argues the trial court should not have excluded her from the trial. Bair contends she had a right but not an obligation to attend the trial. She asserts that merely because she was absent from voir dire she should not have been excluded from the entire trial.

Faust responds the trial court did not err in allowing him to argue an adverse inference to the jury. He argues precedent does permit an adverse inference to be argued based on a witness’ absence when the witness volunteers not to attend trial. Faust contends the witness here chose not to attend despite the opportunities presented to her. He asserts the trial court correctly excluded Bair from the trial. Faust argues Bair did not have a right to appear at leisure throughout proceedings. He contends the court has a right to control the courtroom by exercising its power to exclude a party from the courtroom. Faust asserts the trial court excluded Bair to prevent disruption and unfair prejudice from her unpredictable and dramatic appearance during trial.

SC92672
Kenneth D. Goins v. Lori D. Goins
St. Louis city
Motion for attorney’s fees
Listen to the oral argument:

Kenneth Goins, a solo practitioner in St. Louis, represented himself during arguments, and Lori Goins did not submit an argument.

Kenneth and Lori Goins filed for dissolution of marriage. Judgment of dissolution was entered with maintenance and child support modifiable per instructions in the dissolution. A second judgment of modification was issued to modify support obligations. The husband filed post-trial motions challenging the trial court’s estimation of his annual income, exclusion of payments made to his wife and the determination of custody. All three motions were overruled. The wife filed a motion for attorney fees on appeal. The husband filed two motions to dismiss, which were both overruled. The husband appeals.

The husband argues the trial court erred in finding that section 452.355 was constitutional. He contends the trial court was not authorized to enter judgment regarding the transfer of the case to the appellate court because only the appellate courts are authorized to issue such a judgment. The husband asserts section 452.355 is vague because it does not provide notice of the conduct it prohibits, which would allow judgment against him, and it does not clarify what must be pleaded and proven. He argues he should not be required to pay his wife’s attorney fees because his income is less than hers and he is financially responsible for more children than her. The husband contends the judgment against him was void because it was not based on his actual income, he did not get a hearing on his motion to modify maintenance and the wife’s affidavits regarding payments were void. He asserts the trial court refused to apply the affidavits to past, present or future support obligations. The husband argues the requirement that he failed to pay support or maintenance was not met, and there was no evidence to support such a finding.

The wife did not submit a brief responding to the husband’s argument.

SC92382
State of Missouri v. Michael G. Wade
St. Louis County
Challenge to statute prohibiting sex offenders in parks

This case was removed from the docket March 29, 2013.

SC92491
State of Missouri v. Jason Reece Peterson
Carroll County
Challenge to statute prohibiting sex offenders in parks

This case was removed from the docket March 29, 2013.

SC92229
State of Missouri v. Joey D. Honeycutt
Greene County
Unlawful possession of a firearm

This case was removed from the docket March 29, 2013.